FAQ: Answers to Common Questions about Mistreatment of TGNC Incarcerated People

How can I protest prison mistreatment?

Get a copy of your facility’s grievance system procedures and file a grievance right away. It is important that you “exhaust your administrative remedies” as soon as possible by filing grievances that put your facility on notice that you believe your rights have been violated. The grievance procedures are specific to each facility and sometimes deadlines are very short.

Under the Prison Litigation Reform Act (PLRA), a federal law passed in 1996, people in custody who wish to file a lawsuit in federal court must first exhaust all of the administrative remedies available to them. Failing to do so gives a correctional facility a reason to ask a court to throw out such a case. If you do not file a grievance within the time period provided and pursue it through every level of appeal, it is likely that any lawsuit you bring will be dismissed.

To exhaust your administrative remedies at the federal level, the Bureau of Prisons (BOP) requires that you:

file a “request for an administrative remedy” with your institution within 20 days of the violation of your rights;

appeal any decision that you do not like to a regional office within 20 days;

appeal the decision with 30 days.

There are very few exceptions to the exhaustion requirement, but the Prison Rape Elimination Act (see below for more about the PREA) provides for one: If you have been sexually assaulted, you may still file a grievance related to the sexual abuse even if the deadline to do so has otherwise passed.

What protects transgender people from violence and sexual assault in prison?

The federal Prison Rape Elimination Act (PREA) requires prisons, jails, community confinement facilities and immigration detention facilities to comply with standards to protect vulnerable people from sexual abuse. For example, these facilities must have a written policy mandating “zero tolerance” toward all forms of sexual abuse and sexual harassment; screen incarcerated people for vulnerability and separate them from likely abusers; proactively investigate all complaints; and train guards and other staff about issues specific to transgender people (see “Prison Guards” sidebar, opposite page). While PREA carries financial penalties for noncompliance, it does not allow individuals to file a lawsuit in court if it is violated.

Individuals may, however, file a lawsuit in court based on a violation of the Eighth Amendment, after exhausting administrative remedies (see above). The Supreme Court set the standard for this in Farmer v. Brennan, which involved a transgender woman named Dee Farmer who was repeatedly beaten and raped by other people in a men’s prison. The Court found that prison officials were responsible because they knew about the attacks on Farmer and did nothing. Courts have repeatedly cited the Eighth Amendment’s prohibition of “cruel and unusual punishment” in holding prison officials responsible for such violence. Incarcerated individuals may also be able to file a lawsuit based on violation of state law.

Using the legal principles established in Farmer v. Brennan and the protections of PREA, Lambda Legal filed a federal lawsuit on behalf of Passion Star (Passion Star a/k/a Zollicofer v. Livingston). Ms. Star is a Black trans woman who endured years of physical and sexual abuse during her incarceration in the Texas Department of Criminal Justice. She was finally placed in a secure housing placement known as safekeeping in March 2015, only after Lambda Legal filed an emergency motion for her protection. On December 6, 2016, Passion Star was granted parole from Telford State Prison in Texas, 14 years after entering the TDCJ system and suffering horrific abuse as a transgender woman incarcerated in male prisons.

Are transgender incarcerated people guaranteed access to health care?

Transgender people have struggled to access medically necessary care for years and have suffered a great deal because of bias and misunderstanding. U.S. courts have begun to recognize the health needs of transgender people, with several recent prison-related victories putting the issue in the spotlight. All seven Circuit Courts that have addressed gender dysphoria have recognized it as a serious medical condition.

In Adams v. Bureau of Prisons,4 the Bureau of Prisons agreed to reverse their “freeze frame” policy that prevented transgender prisoners from accessing transition-related care unless they could prove that they had already started it prior to incarceration (see “Health Care” for more about the new policy).

In Norsworthy v. Beard, a California District Court found that refusal of transition-related surgery to a transgender prisoner could constitute sex discrimination.

Even in Kosilek v. Spencer, where a transgender woman was denied the right to receive transition-related surgery, the Massachusetts court recognized that gender dysphoria is a serious medical condition.

In Hicklin v. Precythe (formerly Hicklin v. Lombardi) Lambda Legal filed a federal lawsuit on behalf of Jessica Hicklin, a 38-year-old White transgender woman incarcerated at the Potosi Correctional Center, a facility for male inmates, in Missouri. The case challenges a Missouri Department of Corrections (MDOC) “freeze-frame” policy barring access to hormone therapy for transgender people if they were not receiving treatment prior to incarceration, and seeks other medically necessary gender dysphoria treatment for Ms. Hicklin, including access to gender-affirming canteen items and permanent body hair removal. On February 9, 2018 in an important victory for incarcerated transgender people everywhere, the District Court in Missouri granted Ms. Hicklin’s Motion for Preliminary Injunction, granting her immediate access to the necessary medical care to which she is entitled under the 8th Amendment.

How do prisons decide whether to house a transgender person in a male or female facility?

Most prisons in the U.S. currently house transgender people by the sex assigned at birth or according to genital characteristics. These practices may be changing, however, in light of conflicts with the PREA, which requires that prisons make such decisions on a case-by-case basis. Using surgery to measure whether or not someone has transitioned is counter to established medical thinking. According to the World Professional Association for Transgender Health (WPATH), “Treatment is individualized: What helps one person alleviate gender dysphoria might be very different from what helps another person. This process may or may not involve a change in gender expression or body modifications.” For more about this, please see “Transition-Related Health Care,” another fact sheet in this Lambda Legal Transgender Rights Toolkit.

An increasing number of localities—including Cook County, IL, Cumberland, ME, Denver, CO and Washington, DC—have had success with policies that classify people by gender identity rather than sex assigned at birth. In the 2014 DC case Shaw v. Kates, a transgender woman who had been detained with the male prison population filed a lawsuit against the Washington, DC Metropolitan Police Department, resulting in a settlement that required, among other things, for the department to change its classification policy so that transgender detainees will be classified based on the gender listed on their ID (if they so wish). In addition, this has been the official policy in the United Kingdom since 2011.

If a person seems likely to be victimized by other people in prison, should this person be placed in isolation away from the general population?

Prison officials often deem certain people “at-risk” and segregate them from the general population in “protective custody” or “solitary confinement.” Long-term isolation is a violation of human rights because it amounts to punishment and can cause serious psychological damage.

Lambda Legal joined five other LGBT advocacy organizations in 2012 in urging a Senate panel to stop the discriminatory placement of transgender inmates and immigrant detainees in solitary confinement. Lambda Legal testified that, “Solitary confinement affects many people incarcerated in U.S. jails, prisons and detention facilities, but none so significantly as transgender inmates and immigrant detainees involuntarily confined not because of their actions, but because of their identities.”

The American Civil Liberties Union (ACLU) also testified, stating that “...for prisoners and detainees who are lesbian, gay, bisexual, transgender, have intersex conditions (LGBTI), or are gender-nonconforming, solitary confinement is too often the correctional management tool used to separate them from the general population.”

Under the PREA, facilities may use segregation in isolation, solitary confinement or protective custody only as a last resort. This means taking other steps to prevent abuse such as permitting transgender people to shower separately and exploring alternatives such as moving an aggressor to another cell or facility. Facilities must justify any use of isolated segregation for more than 30 days.

Doesn’t it solve all these problems when prisons have a separate “pod” for LGBT people?

Setting aside special areas in a prison that are only for LGBT people may offer some protection. However, segregating transgender people as an entire group—especially without their consent—can stigmatize them, cut them off from work opportunities, privileges and resources, and actually encourage violence by staff. The PREA bans involuntary segregation of LGBT or intersex people unless it is “in connection with a consent decree, legal settlement or legal judgment for the purpose of protecting such inmates.”Ideally, separation of transgender people from the general prison popula-tion should be voluntary and assessed on a case-by-case basis. People who are separated should have access to the same programs, privileges, education and work opportunities as everybody else.

HEALTH CARE

NEW FEDERAL TRANSGENDER PRISON POLICY

In 2011, a settlement in the case Adams v. Bureau of Prisons (BOP) prompted a major policy reversal for federal prisons. Adams forced the government to begin guaranteeing access to hormone therapy and other care deemed medically necessary by doctors.

Transgender people incarcerated by the BOP now must have access to “individualized assessment and evaluation.”

Also, “current, accepted standards of care will be used as a reference for developing the treatment plan,” as outlined in the Standards of Care published by the World Professional Association for Transgender Health (WPATH).

Finally, “treatment options will not be precluded solely due to level of services received, or lack of services, prior to incarceration.” This tosses out the BOP’s former “freeze frame” policy, whereby officials could refuse transition-related care for people who couldn’t prove they had started such treatment before being incarcerated. Such arbitrary, blanket bans of health care have repeatedly been found to be unconstitutional.

HOUSING PROBLEMS AFTER PRISON

Many TGNC people face discrimination even after they are released from prison and staying in transitional housing. If you are in such a facility and are denied access to the housing and restrooms that you are most comfortable using and that matches who you are, file a complaint.

Donisha McShan was assigned to a male-only unit even though the housing facility also had female and co-ed units. Staff members threatened to send McShan back to prison if she did not comply and live as male. McShan filed an administrative grievance with the facility, because that’s the procedure required to preserve her right to file a case in court, and then Lambda Legal submitted a letter informing the facility that state and federal law prohibit discrimination against transgender people who are incarcerated in government-funded facilities. An apology followed, and McShan was given back her possessions and allowed a room of her own.

FOR MORE INFORMATION: Contact Lambda Legal at 212-809-8585, 120 Wall Street, 19th Floor, New York, NY 10005-3919. If you feel you have experienced discrimination, call our Help Desk toll-free at 866-542-8336 or go to www.lambdalegal.org/help.